Monday, May 3, 2021
‘Time’ has to wait for a woman CJI by Amba Charan Vashishth A woman Chief Justice of India (CJI) is certainly an excellent idea with no noticeable oppositiont from any section of the people. We felt proud to have women as the President of India, Prime Minister, Governor and holding other high offices. Time and tide, it is said, wait for no one. But as things stand today, it looks, “time” has to wait for us to see that auspicious day when India will have a woman as CJI. No authority, as at present, is empowered to appoint a woman as CJI with the stroke of a pen. The time-honoured rule and tradition of respecting the merit and seniority binds the hands of the highest authority to do so. Therefore, the country has to wait for that happy “ time”. Women too would like to have a woman CJI on the strength of merit and not as a measure benefaction to them. On April 15, 2021 a special bench of Chief Justice SA Bobde and Justices Sanjay Kishan Kaul and Surya Kant observed, “Why higher judiciary? We think the time has come when a woman should be Chief Justice of India" (CJI). The bench added, “We have the interest of women in mind. There is no attitudinal change in it. Hopefully, they (women) will be appointed”. It certainly is a noble thought. Nobody can dispute it. No one can differ with it. The Supreme Court (SC) of India came into existence on January 26, 1950. Not a single woman’s name figures in the list of 48 CJIs the country had since then. It is not a commentary on the merit, efficiency and efficacy of women to hold the prestigious position. Whenever and wherever women got an opportunity they had acquitted themselves admirably well. At the same time, there seems hardly an instance where a woman has been denied opportunity only because she was a woman. There is also no dearth of women in the country who can be as fine a judge as male one to head the top court of the country. It is also a fact that although many eligible women in the bar had been found fit for being a judge yet many of them declined to shoulder the responsibility as they put their duty towards their family and children paramount. To a great extent they seem to be right too. They themselves are their family’s ‘present’ while their children are their ‘future’. They, it looks, preferred not to spoil their own — and, to a great extent, of the country’s — “future”. In the absence of the vital motherly love and care, many promising ’futures’ have seen to have gone astray smashing the dreams of parents’ ‘future’. The oldest democracy of the world, USA, has not been able to have a single woman to be President of the country for the last 245 years of its independence. It is not that US people are anti-women or US women do not have the merit and capacity to hold the exalted office. The people of the country, women included, want the situation to evolve itself into the country electing a woman President. Nobody wants a woman to be imposed on them as President. In the 2016 election, Mrs. Hillary Clinton did emerge the first woman to win Democratic Party candidature for election to the office of President, though she lost the election by a blinker. In the 2020 election USA did elect Democratic Party nominee Joe Biden as its President with Mrs. Kamla Harris as his running mate as the first woman Vice-President. Yet it still remains a question as to when USA would elect a woman as the President. Why has come the “time” to have a woman CJI? Thankfully, the demand has not emanated from any political party with an eye for votes of women. Simultaneously, by no stretch of imagination can it be construed to mean that in the absence of a woman CJI justice was/ is not being administered to the people of the country, particularly women. But what the SC bench meant by saying “We have the interest of women in mind” is anybody’s guess. In the three pillars of democracy — executive, legislative and judiciary — the Constitution of India prohibits any discrimination in any matter on grounds of sex, caste, creed and region. Every institution of the Constitution — the President, Vice-President, Prime Minister, the council of ministers, the Supreme Court/High Court, Governors, MPs, MLAs, MLCs and others, whether elected or nominated — and the bureaucracy function for all the people of India as a whole. They do not promote the interests of the political party, sex, creed and region they may belong. For some people India is not a living example of unity in diversity but just of diversity in the form of castes, creeds, men and women, regions and languages. They want this diversity never to end, but always cherished and preserved. They always look at every action of the government through the prism of these dividing factors. These gentlemen always support their cause and want preferential treatment to these sections to grind their axe in politics and elections. As per the spirit of the Constitution a person once elected he/she represents all the people of the constituency — men and women of all castes and creeds — in the Parliament of India, irrespective of the fact whether a section of them had voted for or against him. He is expected to serve the interests and promote development of the constituency as a whole. The same is true of members of the State legislative assemblies. They are not expected to be partial in their conduct. If anybody does, he is guilty of violating the oath he takes on assumption of office to discharge his/her duties without fear and favour towards every person and every group as per the law and the constitution. When we speak of giving representation to this or that section of society in the three pillars of government, it implies that the people in government, legislative bodies and judiciary do not discharge their duties in a fair and impartial manner to dispense justice to all. On the contrary, they discriminate between one section and the other. Therefore, there is need to give representation to left-out sections so that they could promote the interests of those castes and creeds to which they belong. Late Mrs. Indira Gandhi was the Prime Minister of India for more than 16 years. Does it mean that during her reign she promoted the interests and welfare of only women and the caste to which she belonged neglecting all others? Rajiv Gandhi was the youngest prime minister of the country. Does it imply that he was concerned only with the welfare of the youth to the exclusion of all others? Our prime ministers came off from different castes and regions. Did they further only the interests of their castes, creeds and regions? That certainly is not true. If that is the reality, then it is a shameless and grave defiance of the provisions of our constitution which provides for justice to all. So far, we did not have a woman CJI in the country. We had — and are having — some women judges who dispensed justice to one and all and were never weighted in favour of women and against men .The voice being raised for a woman CJI seems to imply as if without this the women in India had — and can — never get justice. Not many would, perhaps, subscribe to this notion. It is time we stop crying for giving representation to sexes, castes, creeds, regions to give a semblance of protecting everyone’s rights and dispensing justice to all. One wonders how is it possible to usher in “the time” to have “a woman CJI” right now. At present there is no woman judge at the top judiciary sufficiently senior to occupy the exalted office. This objective of the “time” to have “a woman CJI” just now can be realised only by disregarding the so far time- honoured rule of respecting an individual’s merit and seniority. Nobody would, perhaps, like to say goodbye to this principle. Perhaps women too would not like to occupy this office as a favour. They would want it as a matter of right on the basis of their merit. *** The writer is a Delh- based political analyst and commentator.